08 February 2017

The Senate Standing Committee on Constitutional & Legal Affairs has released its report on the problematical Privacy Amendment (Re-identification Offence) Bill 2016 (Cth), recommending that the bill be passed.

In late September last year Attorney-General Brandis foreshadowed amendments to the Privacy Act 1988 (Ctht) to strengthen the protections of data published by the Australian government, given that the Government "recognises that the privacy of citizens is of paramount importance" and that "with advances of technology, methods that were sufficient to de-identify data in the past may become susceptible to re-identification in the future".

The stated intention of the Bill is to protect privacy by creating a new criminal offence of re-identifying de-identified government data, retrospective from 28 September. Brandis' second reading speech stated that publication of major datasets is an important part of the Government's Digital Transformation Agenda (so far distinctly underwhelming) and the "21st century government" vision noted here.

The Attorney-General subsequently stated

The recently identified vulnerability in the Department of Health's Medicare and Pharmaceutical Benefits Scheme dataset brought to the Government's attention the existence of a gap in privacy legislation regarding the re-identification of de-identified data. Once aware of this gap, the Government acted immediately to strengthen protections for personal information against re-identification by introducing these offences.

The Bill deals with personal information that has been de-identified by an agency and generally made available. It would prohibit intentional conduct by an entity that re-identifies personal information de-identified by the responsible agency (proposed subsection 16D(1)) or discloses the re-identified personal information (proposed subsection 16E(1)).The sanction is a criminal penalty of up to two years imprisonment or 120 penalty units, or a civil penalty of 600 penalty units.

Irrespective of the re-identifying entity's intentions, where de-identified personal information has been re-identified the entity must notify the responsible agency that the information is no longer de-identified, cease any use or disclosure of the re-identified information, and comply with the directions of the agency about the handling of the information (proposed section 16F). The Bill provides for a civil penalty of up to 200 penalty units for failing to notify the responsible agency in writing, or for using or disclosing the information after it becomes aware that the information is no longer de-identified (proposed subsections 16F(3) and (4)).

The dissenting report by the ALP and Greens Senators argues that the Bill is a disproportionate response to the gap in the Privacy Act 1988, does not achieve the stated objectives and accordingly should not be passed -

The privacy of Australians is of paramount importance; however, a careful balance must be achieved between maintaining privacy, ensuring that government agencies properly de-identify datasets prior to its publication, and encouraging research into the areas of information security, cryptology and data analysis. The bill fails to provide a holistic response and neglects to consider the de-identification process and consequences for agencies for releasing datasets that have been poorly de-identified. As outlined by the NSW Office of the Privacy Commissioner:

...it places a disproportionately high onus on external recipients to be aware which released datasets are considered to have undergone a de-identification process. The proposed provisions do not appear to create corresponding obligations on the releasing entities to certify each released dataset as deriving from personal data or the treatment used to achieve the outcome of non-identifiable data.

Rather, if passed, the bill adopts a punitive approach towards information security researchers and research conducted in the public interest. In contrast, government agencies that publish poorly de-identified information do not face criminal offences and are not held responsible. While the Privacy Act does not apply to most Australian universities, as outlined by Melbourne university researchers, the implications of the bill are not clear for researchers at the Australian National University, students, and individuals acting on their own initiative who happen to be university employees. Additionally, no consideration has been given as to whether an individual who re-identifies their own information, or their dependent's or client's information, should also be subject to the bill. The bill discourages research conducted in the public interest as well as open discussion of issues which may have been identified.

Labor and Greens Senators are opposed to the retrospective application of the bill and agree with the concerns raised by the Senate Scrutiny of Bills Committee and the Law Council of Australia that retrospective provisions offend a fundamental principle in the rule of law and that this is particularly acute in the case of criminal offences.

Moreover, while the Attorney-General has claimed that the retrospective application of this bill was made clear in his announcement on 28 September 2016, the submission by the Melbourne university researchers indicates a level of ambiguity. They explain that they had interpreted a commitment that 'all legitimate research would be allowed to continue [as opposed to] some designated research should be exempt'.

Labor and Greens Senators also disagree with reversing the evidential burden of proof. As justification for reversing the burden of proof, the Explanatory Memorandum noted that it would not be difficult for the entity to demonstrate that one of the exemptions apply and that it also reflects the seriousness of the prohibited conduct. However, as outlined by the Senate Scrutiny of Bills Committee, the fact that it would be easy for an entity to provide evidence that one of the exemptions apply, or conversely, that it may be difficult for the prosecution to prove that the exemption does not apply, is not sufficient justification for reversing the burden of proof. Also, it is not apparent that it would be particularly onerous for the prosecution to prove that the exemption did not apply. As such, the justification for reversing the burden of proof is neither reasonable nor appropriate.

The bill provides a disproportionate reaction to the identified gap in the Privacy Act. It neglects the initial process of de-identification and does not hold government agencies responsible for publishing poorly de-identified datasets. Instead it penalises public interest research and discourages open investigation and discussion of potential issues relating to information security. The disproportionate response is also evidenced through the retrospective application of the bill as well as the reversal of the burden of proof.

The Coalition Senators commented

The government has outlined its view that the benefits of open data outweigh the risks of re-identification. This view was shared by the Productivity Commission in its draft report Data Availability and Use. This report stated that the risks of re-identification of data and harm to an individual were real and should not be trivialised, however noted that many of these risks could be managed with the right policies and processes. The report also noted that increasing data use does not necessarily put individuals at a greater risk of harm. It concluded that Australia stands out among other developed countries where information, particularly in the area of health, is poorly used and suggested that fundamental change was needed with the introduction of new legal and policy frameworks. These frameworks would work towards four key elements:

giving individuals more control over data held about them;

encouraging and enabling broad access to government datasets;

increasing the usefulness of publicly funded identifiable data among trusted users; and

creating a culture where non-personal and non-confidential data is released as a default

The Office of the Australian Information Commissioner (OAIC) agreed that a careful balance is needed between open data and privacy protections and warned that the bill, in and of itself, would be unlikely to eliminate the privacy risks associated with the publication of de-identified datasets. OAIC outlined the need to consider whether the risk of re-identification is sufficiently low for the data to be published openly, or whether other safeguards should be applied, such as making the data available only to trusted users with contractual or technological safeguards in place

[42] "The framers of a Constitution at the end of the nineteenth century may be supposed to have known that there have been in this world many forms of Government, that the various incidents and attributes of those several forms had been the subject of intelligent discussion for more than 2,000 years, and that some doctrines were generally accepted as applicable to them respectively". The framers of the Australian Constitution selected, adapted and melded elements of the substantially overlapping constitutional traditions of the United Kingdom and the United States as those traditions were understood to have developed to the end of the nineteenth century. They did so to produce a framework for the creation, at the beginning of the twentieth century, of a distinctly Australian system of national governance. That framework the Australian people, themselves acquainted with the manner in which representative and responsible government under the rule of law had come to be established and to operate in each of the colonies which were to become States, chose to approve. The objectively discernible mutual intentions of the framers and of the people would miscarry, and the system of national governance which the framers laboured to see created would be diminished, were the product of their labour sought to be "construed merely by the aid of a dictionary, as by an astral intelligence … without reference to history".

[43] Nowhere is an appreciation of the historical context within which the Australian Constitution was brought into existence more important than in seeking to understand the "judicial power of the Commonwealth", which s 71 vests solely in this Court, in federal courts which the Commonwealth Parliament chooses to create in accordance with s 72 and in courts which the Commonwealth Parliament chooses to invest with "federal jurisdiction" with respect to one or more of the nine categories of "matter" specified in ss 75 and 76. The difficulty and the danger of attempting to formulate some all-encompassing abstract definition of the judicial power of the Commonwealth was acknowledged from its inception, was repeatedly recognised in judicial pronouncements throughout the twentieth century and has been reiterated in this century.

[44] For present purposes, an understanding of the nature and scope of the judicial power of the Commonwealth is enhanced by close attention to the reasoning of the plurality of this Court in R v Davison. Dixon CJ and McTiernan J (with whom Fullagar J agreed) there pointed out that many functions have traditionally been undertaken by courts of law and equity from which elements of various definitions of judicial power formulated for differing purposes in the early twentieth century are "entirely lacking". They added that there are also many functions which can be committed to a court which might equally be committed to an administrator.

[45] Dixon CJ and McTiernan J continued:
"The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description. But there are many functions or duties that are not necessarily of a judicial character but may be performed judicially, whether because they are incidental to the exercise of judicial power or because they are proper subjects of its exercise."

[46] Their Honours went on to explain, by reference to the analysis of Holmes J in Prentis v Atlantic Coast Line Co, that where the legislature has prescribed that a particular act or thing be done through the application of a judicial process, "the character of the proceeding or of the thing to be done becomes all important" in that "[t]he nature of the final act determines the nature of the previous inquiry".

[47] Within that exposition of principle lie two important conceptions. Each had been the subject of earlier judicial articulation and each came to be developed more fully in later cases. The first is of the existence of an area of judicial power within which a particular act or thing done is directed to an ultimate end that can be achieved only through the exercise of judicial power. At the centre of that exclusive area is what has subsequently been described as the "unique and essential function" of the judicial power of "the quelling of … controversies [as to legal rights] by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion". Also within that exclusive area of judicial power and more difficult to catalogue are some, but by no means all, other functions that have in the past been exercised only by courts. The second conception is of an area of judicial power, within "[t]he borderland in which judicial and administrative functions overlap", and within which a particular act or thing done by a court through the application of a judicial process is directed to an ultimate end that might equally be achieved through the application of a non-judicial process. Beyond those two conceptions lies the area of non-judicial power.

[48] Where the Commonwealth Parliament confers a power to do a particular act or thing on a court, it must be assumed in the absence of some indication to the contrary that the Parliament intends and requires that power to be exercised by that court through the application of a judicial process. If the act or thing is capable of being done through the application of a judicial process, the question whether the power to do it is within the judicial power of the Commonwealth turns on the end to which the act or thing is directed.

[49] Where what the court is empowered to do is to make an order requiring or permitting the conduct of an inquiry or investigation, the question whether the power to make that order is within the judicial power of the Commonwealth therefore turns on the end to which the inquiry or investigation is directed. That is so notwithstanding that the mere making of the order might in a technical, but artificial, sense be said to quell a controversy about whether the order itself should be made.

[50] Of the import of the endorsement in Davison of the analysis of Holmes J in Prentis, Mason J explained in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission that the exercise of a power to compel the provision of information is not inherently an exercise of judicial power but that:
"It may constitute an element in the exercise of judicial power when the power is part of the proceedings of the court, its object being to aid the court or the parties to obtain and present evidence in those proceedings. Then the exercise of the power by the court or the parties in proceedings in the court is for the purpose of enabling the court to hear and determine the lis and is, accordingly, incidental to, if not an element in, the exercise of judicial power."

[51] The position is no different in principle where the power conferred on a court to compel the provision of information has as its object to assist an applicant for the exercise of that power in the pursuit of a claim of legal right which is the subject of a proceeding in another court or which may not yet have become the subject of a proceeding at all. A power of that kind was traditionally exercised by the Court of Chancery in issuing bills of discovery and is now often enough exercised by courts making orders for preliminary discovery in accordance with modern rules of civil procedure. The making of an order for preliminary discovery, as the Full Court of the Federal Court demonstrated in Hooper v Kirella Pty Ltd, fits comfortably within the paradigm case of an exercise of judicial power in that it is directed ultimately to the resolution of a claim of legal right. That is so notwithstanding that the information sought is essential to the pursuit of the claim and notwithstanding that the claim might well be shown by that information when obtained to be incapable of being established.

[52] It is at this point in the analysis that there arises an important question of principle. What if the power conferred on the court to make an order compelling the provision of information is exercisable without any requirement for there to be a lis – in the sense of a claim or controversy as to legal right – in aid of the resolution of which the making of the order is directed? What if, to adopt language used by Gaudron J in Gould v Brown to describe the power to order the examination of an examinable officer in relation to the examinable affairs of a corporation then conferred by ss 596A and 596B of the Corporations Law, it is "simply a power to obtain information"?

[53] Questions of that kind arose in this Court in the exercise of its appellate jurisdiction in Cheney v Spooner and again in Rees v Kratzmann.

[54] In Cheney v Spooner, the appeal was from an order made under s 16 of the Service and Execution of Process Act 1901 (Cth) giving a liquidator leave to serve in Victoria a summons for examination concerning the affairs of a company in voluntary winding up which had been issued by a Master in Equity of the Supreme Court of New South Wales under s 123 of the Companies Act 1899 (NSW). In the course of holding the summons for examination to answer the statutory description in s 16 of a "summons … requiring any person to appear and give evidence … in any civil or criminal trial or proceeding", Isaacs and Gavan Duffy JJ referred to the winding up, which had been initiated by petition to the Supreme Court, as "a distinct judicial proceeding". They said that the summons required the giving of "evidence" in that proceeding on the basis that it provided the liquidator with "the means of obtaining information, that is evidentiary facts, enabling him to come to a conclusion as to ultimate facts" in the discharge of his "responsibility of working out the affairs of the company". No constitutional issue was raised, however, and s 16 was subsequently held not to be confined to process judicial in nature.

[55] In Rees v Kratzmann, the appeal was from a decision of the Full Court of the Supreme Court of Queensland dismissing an appeal from a direction of a single judge of that Court that the respondent, a former managing director, not be allowed to answer a certain question in the course of being publicly examined in relation to the affairs of a company pursuant to an order which had been made under s 250 of the Companies Act 1961 (Q). Preliminary objection was taken to the jurisdiction of this Court to hear the appeal on the ground that, the appeal arising only in the course of a public examination, there was no lis between the parties and that the order appealed from was for that reason not a decree, order, judgment or sentence within the meaning of s 73 of the Constitution. The objection was overruled. Without giving reasons, the Court directed that the hearing of the appeal proceed, thereby treating the order of the Full Court of the Supreme Court as one made in the exercise of judicial power.

[56] One explanation for the outcome of the preliminary objection in Rees v Kratzmann might be that, irrespective of whether the making of the order under s 250 of the Companies Act had been an exercise of judicial power, the question which arose in the course of the examination as to the scope of the order involved a justiciable controversy. The same explanation might be given of the basis on which an application for special leave to appeal was entertained without objection in Mortimer v Brown, and of the basis on which appellate jurisdiction was exercised without objection in Hamilton v Oades, where the issue was whether the common law privilege against self-incrimination was abrogated by the equivalent provision in s 541 of the Companies (New South Wales) Code.

[57] The question of whether a power legislatively conferred on a court to order an examination in relation to the examinable affairs of a corporation is judicial in nature was raised squarely for the consideration of this Court for the first time in Gould v Brown. The issue was whether the power to make such an order, then conferred by ss 596A and 596B of the Corporations Law applying as State legislation under the Corporations (New South Wales) Act 1990 (NSW), was validly conferred on the Federal Court. Only three members of the Court of six – Brennan CJ and Toohey J and (in a separate judgment) Gaudron J – found it necessary to address whether the power was judicial in nature, and all three found it necessary to do so only to the extent that the power was available to be exercised in respect of a corporation that had been the subject of a winding-up order made by the Federal Court. The view of Brennan CJ and Toohey J was that "[t]o the extent that the power to order and conduct examinations is available for exercise in the course and for the purposes of a winding up, it is an incident of the judicial power of winding up and has a judicial character". The view of Gaudron J, more sceptical and tentatively expressed, was to substantially similar effect save that her Honour took the view that the power could only be exercised by the court which had ordered the winding up.

[58] The question was not raised in the appeal to this Court in Spinks v Prentice, in which other issues were raised as to the validity of the conferral on the Federal Court of power under the Corporations Law set out in s 82 and applying as Territory legislation under s 5 of the Corporations Act 1989 (Cth). Gummow and Hayne JJ[85], with whom Gleeson CJ relevantly agreed, expressly declined to address the issue. Gaudron J reiterated[87] the view she had expressed in Gould v Brown.

[59] The question was raised again in this Court in Saraceni v Jones, on an application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia. The Court of Appeal had formally answered a question referred for its consideration to the effect that the exercise of power by the Supreme Court to make an order for examination under s 596A of the Corporations Act 2001 (Cth) and to conduct an examination under s 597 in relation to a corporation in receivership and where the property of the corporation is in the possession of a mortgagee or its agent under Pt 5.2 of the Corporations Act constitutes an exercise of the judicial power of the Commonwealth. Refusing special leave to appeal, three members of this Court expressed the view that the actual orders of the Court of Appeal were not attended by doubt. That expression of view is of persuasive value but it does not have precedential effect.

[60] The question of whether the power to make an order for examination under s 596A of the Corporations Act is judicial in nature returned to be squarely raised in this Court in these proceedings in its original jurisdiction, which challenge orders made by the Federal Court for examinations into the examinable affairs of a corporation in voluntary liquidation. At the conclusion of the hearing before the Full Court of this Court, I joined in making orders which included an order formally answering in the negative a question reserved for the consideration of the Full Court asking in unqualified terms whether s 596A of the Corporations Act is invalid as an attempted conferral of non-judicial power on a federal court or on another court exercising federal jurisdiction.

[61] My reasons for considering s 596A of the Corporations Act to be a valid conferral of judicial power embrace neither of two somewhat extreme positions advanced in the course of argument by the defendants and by some who intervened to support validity. The argument at one extreme was that it was sufficient to characterise the power as a judicial power that the examination might yield some information that might be used to pursue some claim of legal right. The argument at the other extreme was that it was sufficient to characterise the power as a judicial power that a broadly analogous power of examination can be seen to have been exercised by courts in the Australian colonies in 1900 under provisions modelled broadly on s 115 of the Companies Act 1862 (UK). The first pays insufficient attention to the importance of constitutional history. The second relies on a misinterpretation of what was said by Kitto J in Davison, which results in a conception of constitutional history that is too narrow.

[62] The separate reasons for judgment of Kitto J in Davison contain the following statement:
"It may ... be said that when the Constitution of the Commonwealth prescribes as a safeguard of individual liberty a distribution of the functions of government amongst separate bodies, and does so by requiring a distinction to be maintained between powers described as legislative, executive and judicial, it is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise."

[63] The statement too readily misinterpreted is that which immediately follows. His Honour said:
"For this reason it seems to me that where the Parliament makes a general law which needs specified action to be taken to bring about its application in particular cases, and the question arises whether the Constitution requires that the power to take that action shall be committed to the judiciary to the exclusion of the executive, or to the executive to the exclusion of the judiciary, the answer may often be found by considering how similar or comparable powers were in fact treated in this country at the time when the Constitution was prepared. Where the action to be taken is of a kind which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system, the conclusion, it seems to me, is inevitable that the power to take that action is within the concept of judicial power as the framers of the Constitution must be taken to have understood it."

[64] The significance of the second of those statements of Kitto J lies in its connection with the first and in the weight properly to be accorded to his Honour's reference to what had come "by" 1900 "consistently" to be "regarded as peculiarly appropriate for judicial performance". His Honour was writing in the context of considering the characterisation of the power to order sequestration, which had been exercised judicially for centuries.

[65] What Kitto J can be taken to have meant in Davison can only fully be understood by considering what he there said together with what he said subsequently in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, to which it will be appropriate in due course to turn. There is no inconsistency.

[66] The appropriate perspective on what Kitto J said in Davison is that adopted by Jacobs J in R v Quinn; Ex parte Consolidated Food Corporation. An argument advanced in that case, relying on what Kitto J had said in Davison, was that the particular function of removing a trademark from a register fell within the exclusive area of judicial power because it had in practice been conferred only on courts between 1875 and 1938.

[67] Rejecting that argument, Jacobs J (with whom Barwick CJ, Gibbs, Stephen, Mason and Murphy JJ relevantly agreed) said:
"The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom."

[68] His Honour continued:
"On the other hand the course of legislation in comparatively recent times does not, in itself, provide a foundation for the historical approach. If the legislation requires the exercise of a power to determine questions the determination of which will affect what are traditionally regarded as basic legal rights, the judicial nature of the power springs from the effect which the exercise of the decision-making function under the legislation will have upon the legal rights rather than from the history of similar legislation reposing the function in a judicial tribunal."

[69] The perspective on the significance of history adopted by Jacobs J in Quinn is as important to determining whether a particular function is inherently non-judicial (so as to lie beyond that which is capable of being conferred on a court) as it is to determining whether a particular function is exclusively judicial (so as to be capable of being conferred only on a court). The primary question in each case is not as to how the function might have been exercised in practice at or around 1900. The answer to that narrow temporal question will be relevant, but it cannot be determinative. The aim is not simply to take a snap-shot of the historical position at a moment in time. The fundamental question is as to how the particular function is now to be characterised having regard to the systemic values on which the framers can be taken to have drawn in isolating the judicial power of the Commonwealth and in vesting that power only in courts. The aim is to be faithful to those values.

[70] The task of assigning content to the judicial power of the Commonwealth "is one of construing the Constitution as it stands", Windeyer J explained in Tasmanian Breweries, yet that task of construing the Constitution as it stands is one which it is "impossible to do … on the assumption that Montesquieu had never lived … or that those who framed our Constitution did not copy s 71 from s 1 of Art III of the Constitution of the United States". Of the concept of judicial power to which s 71 refers, his Honour went on to state:
"The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis. It inevitably attracts consideration of predominant characteristics and also invites comparison with the historic functions and processes of courts of law."

[71] Windeyer J was explaining that the concept of the judicial power of the Commonwealth needs to be understood by reference to the reason for that power being separated and reposed only in courts of law. He was also explaining that the reason for the judicial power of the Commonwealth being separated and reposed only in courts of law needs to be understood against the background of the at first common and then divergent constitutional histories of the United Kingdom and the United States, and the powerful ideas which that history generated.

[72] That explanation by Windeyer J in Tasmanian Breweries is wholly consistent with the frequently quoted statement of Kitto J in the same case that "a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". That description was of what I have already described as the paradigm case of an exercise of judicial power. Importantly, Kitto J added that "[i]t is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified".

[73] By framing his description of judicial power in Tasmanian Breweries in "general and ahistorical terms", Kitto J cannot be taken to have been ignoring the importance of what he had described in Davison as "distinctions generally accepted at the time when the Constitution was framed". Nor can he be taken to have been ignoring or marginalising the lessons of history. With reference to his Honour's description of the paradigm case of an exercise of judicial power, and similar descriptions that are to be found in other cases, Professor Zines observed:
"Indeed, in a sense, the concept of judicial power referred to above is itself derived from historical examination, that is, of what courts have done. From this has been distilled those features that are pre-eminently or exclusively judicial, which have been arrived at by having regard to social values and the reasons for preserving the separateness of judicial power."
His Honour's requirement, outside the paradigm case, for "some special compelling feature" to justify inclusion in the category of judicial power expressly invokes a normative frame of reference.

[74] Of similar effect to the observations of Windeyer J in Tasmanian Breweries and Jacobs J in Quinn is an observation of Cardozo CJ which was quoted by Mason and Deane JJ in Hilton v Wells and (in part) by French CJ and Kiefel J in Wainohu v New South Wales as applicable to the Australian Constitution:
"From the beginnings of our history, the principle has been enforced that there is no inherent power in Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfilment of judicial duties. ... The exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence of the judicial function may be destroyed".
Not unimportant for present purposes is that Cardozo CJ made that observation in the context of holding invalid, as incompatible with the separation of powers under the Constitution of the State of New York, a statutory provision which allowed the Governor, in any proceeding for the removal by him of a person from public office, to direct that evidence be taken before a justice of the Supreme Court.

[75] What then does history relevantly teach about the relationship between a power of investigation or inquiry and the essence of the judicial function?

[76] Baron de Montesquieu's The Spirit of Laws was first published in 1748. "Of the Constitution of England", he then famously observed (according to an English translation of 1751):
"Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."

[77] Borrowing from and providing "an essentially English interpretation of Montesquieu", Sir William Blackstone wrote in the first book of his Commentaries on the Laws of England, published in 1765:
"In this distinct and separate existence of the judicial power ... consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were [judicial power] joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overballance for the legislative. For which reason, by the statute of 16 Car I c 10 which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state."

[78] In Huddart, Parker & Co Pty Ltd v Moorehead Isaacs J referred to that passage, amongst other passages, in Blackstone as "a key" to the meaning of the judicial power of the Commonwealth. After quoting that passage in Blackstone, together with statements concerning the separation of the judicial power of the Commonwealth in R v Kirby; Ex parte Boilermakers' Society of Australia made by a majority of this Court and in R v Richards; Ex parte Fitzpatrick and Browne (the first made in the context of emphasising the role of the courts in maintaining the federal system and the second emphasising the role of courts more generally in determining whether the other arms of government had acted in "excess of power"), Deane J said in Re Tracey; Ex parte Ryan:
"Therein lie the main point and justification of the doctrine of the separation of judicial from executive and legislative powers upon which the Constitution is structured. To ignore the significance of the doctrine or to discount the importance of safeguarding the true independence of the judicature upon which the doctrine is predicated is to run the risk of undermining, or even subverting, the Constitution's only general guarantee of due process."

[79] Blackstone's linking of the separation of judicial power to the dissolution of the Court of Star Chamber by the Habeas Corpus Act 1640 is for present purposes significant. There was a time, in the seventeenth century, when the Court of Star Chamber, a judicial arm of the Privy Council, acted as "the curious eye of the state and king's council prying into the inconveniencies and mischiefs which abound in the Commonwealth". Its procedures notoriously included the "oath ex officio" which the Puritan John Lilburne, who famously refused to take it in 1637, described as "the inquisition Oath". By that procedure, without necessity for prior particularisation of the subject-matter on which he was to be examined, a defendant would be told to swear at the outset of a proceeding "[t]hat you shall make true answer to all things that are asked of you" and would be punished for contempt if he refused. The Habeas Corpus Act 1640, after providing for the dissolution of the Court of Star Chamber, went on to provide that "from henceforth no Court, Council or Place of Judicature, shall be … constituted … which shall have, use or exercise the same or the like Jurisdiction" as well as to declare that neither the King nor his Privy Council were to have jurisdiction, power or authority "to examine or draw into question, determine or dispose of the Lands, Tenements, Hereditaments, Goods or Chattels of any the Subjects of this Kingdom; but that the same ought to be tried and determined in the ordinary Courts of Justice, and by the ordinary Course of the Law".

[80] From that time forward the general rule, to which it is possible that exceptions might be found were the books to be trawled, has been that courts administering common law do not exercise common law or statutory powers to inquire into subject-matters unconnected with the determination of some claim of legal right. A "court of justice" has been conceived of as distinct from a court of investigation, such as a coroner's court or a court of marine inquiry.

[81] The issuing of a search warrant, for example, has never been conceived of as an exercise of judicial power or as of a nature that is susceptible of becoming an exercise of judicial power even if it might be capable of being exercised judicially. Even the conduct of a preliminary inquiry to determine whether a sufficient basis exists to commit a prisoner for trial – a "plainly inquisitorial" feature of criminal process undertaken by justices of the peace since the middle of the sixteenth century having "the closest, if not an essential, connexion with an actual exercise of judicial power" – has been seen not itself to be an exercise of judicial power but rather to be the performance of an executive or ministerial function: the inquisitor acting not as a "Court of Justice" but as "an officer deputed by the law to enter into a preliminary enquiry"[129].

[82] In Rees v Kratzmann, Windeyer J explained:
"There is in the common law a traditional objection to compulsory interrogations. … The continuing regard for this element in the lawyer's notion of justice may be, as has been suggested, partly a consequence of a persistent memory in the common law of hatred of the Star Chamber and its works. It is linked with the cherished view of English lawyers that their methods are more just than are the inquisitional procedures of other countries."
His Honour immediately continued:
"But, strong as has been the influence of this attitude upon the administration of the common law, of the criminal law especially, it must be admitted that in the Chancery Court it had less place: and in bankruptcy jurisdiction it has been largely displaced."

[83] The extent to which equity, administered by the Court of Chancery, was a counterpoise to the common law in this respect should not be overstated. A bill of discovery in equity, as I have already noted, was a process directed to the pursuit of a claim of legal right. It was not available to assist the prosecution or defence of a criminal action. There was, moreover, by 1736, "no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or any thing in the nature of a penalty".

[84] A unifying theme of the core area of equitable jurisdiction exercised exclusively by the Court of Chancery might well be said to have been supervision of administration. That is a particularly apt description of the role of a court administering equity in relation to the Court of Chancery's most significant creation – suggested by Professor Frederic Maitland at the turn of the twentieth century to be "the most distinctive achievement of English lawyers" – the trust. Fundamental to the law of trusts is that the court has jurisdiction to supervise, and in appropriate circumstances to intervene in, the administration of a trust. Indeed, a test of the validity of a trust is that it must be of such a nature that it can be administered by a court. Appurtenant to that jurisdiction is a capacity for a court on application in appropriate circumstances both to advise a trustee and to compel the provision of information by a trustee.

[85] Supervision of administration is also an apt description of the role of a court administering equity in relation to "one of the oldest remedies" in the Court of Chancery – the appointment of a receiver, who as an officer of the court and subject to its direction is "to take possession of, get in, or recover, property for the benefit of the persons who are ultimately determined to be entitled to it".

[86] The longstanding statutory jurisdiction of the Court of Chancery to supervise the administration of insolvent estates was of the same ilk. In In re Condon; Ex parte James, a trustee in bankruptcy was described as "an officer of the Court", having "inquisitorial powers", whose duty it was "to hold money in his hands upon trust for its equitable distribution among the creditors".

[87] The jurisdiction with respect to companies in winding up, which the Court of Chancery came to exercise in the middle of the nineteenth century, fitted much the same pattern. The winding up of a company has appropriately been described in generic terms as a process, "comparable to an administration in equity", that "consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled".

[88] The legacy of the jurisdiction so exercised by or conferred on the Court of Chancery, as Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ remarked in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia, is that in modern times "courts are well accustomed to the exercise of supervisory jurisdiction upon applications by trustees, receivers, provisional liquidators and others with the responsibility for the conduct of administrations".

[89] Within the context of administration, the statutory powers first reposed in the Court of Chancery in the middle of the nineteenth century to make orders for the examination of bankrupts and of officers and other persons in relation to the affairs of companies in winding up, which came correspondingly to be conferred on the Supreme Courts of the Australian colonies by the end of the nineteenth century, could not be regarded as anomalous. But they were regarded as "extraordinary" and could "only be described as being sui generis".

[90] Of the power to make an order for the examination of a bankrupt, Jessel MR said in In re Wright; Ex parte Willey:
"Now that is a very grave power to entrust to any Court or any man, viz, power to summon any other man whom you suspect (for mere suspicion will do) to be capable of giving information, and to get any information from him, although that information may be extremely hostile to the interests of the man himself. It is a power which, so far as I know, is found nowhere except in bankruptcy and the winding-up of companies (which is a kind of bankruptcy); it is a very extraordinary power indeed, and it ought to be very carefully exercised."
In In re Greys Brewery Co, Chitty J referred to s 115 of the Companies Act 1862 (UK) – the provision originally conferring power on the Court of Chancery to order an examination in relation to the affairs of a company in winding up – as the "'Star Chamber' clause".

[91] How then, in light of that history, should this Court approach the characterisation of a power to order an examination conferred on a court by what those who support its validity argue to be a modern equivalent of that "'Star Chamber' clause"?

[92] We must be careful not to slip into "Montesquieuan fundamentalism". We must bear in mind that the Constitution as a whole was framed as "an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances". We must recognise that "[t]he modern regulatory state arrived after 1900", with consequences which include that "modern federal legislation creates rights and imposes liabilities of a nature and with a scope for which there is no readily apparent analogue in the pre-federation legal systems of the colonies" and that "[d]eciding whether a governmental power or function is best exercised administratively or judicially is a regular legislative exercise". We must also be sensitive to the consideration that "the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided".

[93] Fidelity to the values which inform the separation of the judicial power of the Commonwealth nevertheless requires that we be extremely cautious about accretion to the judicial power of a power to inquire which is unrelated or tenuously related to the core judicial function of quelling controversies about legal rights. To admit that an inquiry into a subject-matter is in the public interest is very different from admitting that the conferral of a power to conduct such an inquiry on a court accords with the constitutional structure that has been created to secure the enduring interests of the Commonwealth. Our job is to take a long-term view.

07 February 2017

'The Regulation of Witchcraft and Sorcery Practices and Beliefs' by Miranda Forsyth in (2016) 12 Annual Review of Law and Social Science 331-351 reviews and analyzes

the growing bodies of literature on the regulation of sorcery and witchcraft beliefs and practices. The most visible problems relating to these beliefs and practices are the violent exorcisms, banishment, torture, and killing inflicted upon those accused of practicing sorcery and witchcraft in many parts of the global South. Sorcery and witchcraft are also (once again) becoming a challenge for countries in the global North, mainly within migrant communities in relation to children accused of witchcraft and exorcized and also in the context of claims to refugee status and freedom of religion. The article covers scholarly literature (legal, anthropological, economic, historical), law reform commission reports, nongovernmental organization (NGO) reports, and UN documents over the past 15 years concerning the regulation of the negative societal impacts of sorcery and witchcraft practices and beliefs. It concludes that there is a need for greater empirical study of the impacts of various regulatory initiatives adopted and promoted by national governments, NGOs, and international organizations.

'Nutrition labelling is a trade policy issue: lessons from an analysis of specific trade concerns at the World Trade Organization' by
Anne Marie Thow, Alexandra Jones, Corinna Hawkes, Iqra Ali and Ronald Labonté in (2017) Health Promotion International 1-11 comments

Interpretive nutrition labels provide simplified nutrient-specific text and/or symbols on the front of pre-packaged foods, to encourage and enable consumers to make healthier choices. This type of labelling has been proposed as part of a comprehensive policy response to the global epidemic of non-communicable diseases. However, regulation of nutrition labelling falls under the remit of not just the health sector but also trade. Specific Trade Concerns have been raised at the World Trade Organization’s Technical Barriers to Trade Committee regarding interpretive nutrition labelling initiatives in Thailand, Chile, Indonesia, Peru and Ecuador. This paper presents an analysis of the discussions of these concerns. Although nutrition labelling was identified as a legitimate policy objective, queries were raised regarding the justification of the specific labelling measures proposed, and the scientific evidence for effectiveness of such measures. Concerns were also raised regarding the consistency of the measures with international standards. Drawing on policy learning theory, we identified four lessons for public health policy makers, including: strategic framing of nutrition labelling policy objectives; pro-active policy engagement between trade and health to identify potential trade issues; identifying ways to minimize potential ‘practical’ trade concerns; and engagement with the Codex Alimentarius Commission to develop international guidance on interpretative labelling. This analysis indicates that while there is potential for trade sector concerns to stifle innovation in nutrition labelling policy, care in how interpretive nutrition labelling measures are crafted in light of trade commitments can minimize such a risk and help ensure that trade policy is coherent with nutrition action.

The authors argue

This analysis of Specific Trade Concerns raised in the TBT Committee over the past decade–and particularly since 2013–underscores the need to consider public health nutrition labeling interventions also as trade policy interventions. Nutrition labelling for public health purposes has been consistently identified in discussions in the WTO TBT Committee as a legitimate policy objective. However, queries have been raised regarding the justification of the specific labelling measures proposed, and the scientific evidence for effectiveness of such measures. Concerns have also been raised regarding the consistency of the measures with international standards.

Our analysis should also be considered in the light of the political economy of trade. WTO disputes regarding trade and tobacco have indicated that concerns regarding compliance with WTO Agreements are also influenced by economic and political interests. For example, in the case of plain packaging of tobacco, formal disputes were raised regarding WTO compliance, even though legal analyses indicated that the legislation was formally compliant with global trade law (Mitchell, 2010; Jarman, 2013). Other observers have noted the use of trade and investment disputes to undermine and/or stall tobacco control legislation (Lencucha and Drope, 2015). This has significant relevance to nutrition, where the processed food industry is a significant political actor and has been seen to lobby effectively against mandatory labelling (Mandle et al., 2015). In addition–and unlike tobacco–there is no international convention or specific standard regarding nutrition labelling for NCD prevention. In this context, there is thus an imbalance between the strong global policy norms regarding trade (economic interests) and weak global policy norms regarding nutrition policy.

Theories of policy learning can help to reframe policy challenges as opportunities, by highlighting considerations relevant to other jurisdictions or other times (Rose, 1993). Hall’s theory of social learning highlights key issues influencing learning as framing, the context in which policy makers work, and the importance of policy design (Hall, 1993). We identified four lessons for public health policy makers that arise from this analysis of discussions in the TBT Committee: to frame the policy objectives strategically, in relation to the necessity of the measure; to strengthen policy processes in ways that pro-actively identify potential trade issues; and to minimise (where possible) potential trade restrictiveness, or what was referred to in the TBT Committee discussions as ‘practical’ concerns; and to engage with the Codex Alimentarius Commission processes to develop international guidance on interpretative labelling.

First, strategic framing of the policy objectives to align clearly with the policy settings can assist in demonstrating the necessity of the measure. Although the ‘legitimate objective’ of protecting human health should be invoked, it is essential that the objective of the measure is defined in relation to how the measure will address the specific problem, because the policy objective defines the evidence required to establish necessity. For example, if a mandatory nutrition labelling measure is stated to pursue an objective of providing consumers with nutrition information in a more understandable format, then a challenging member would need to show there are less trade restrictive alternatives that would equally fulfil this aim. Previous disputes highlight the high threshold applied to this test. Where an alternative means of achieving the objective entails greater ‘risks’ that the objective will not be fulfilled, this will not be considered a valid alternative, even if it were less trade restrictive (WTO, 2011). In contrast, where a measure is framed as pursuing a broader objective of reducing the burden of obesity or NCDs, this opens potential scope for a complainant to propose a wider variety of measures that may achieve this aim.

This suggests that objectives need to be framed in relation to the first point of impact of the measure, which is usually provision of understandable information (Figure 1). Evidence to justify the measure would then focus on: best available current advice on healthy consumption levels (either a country’s own daily recommended levels, or some internationally accepted advice), clarity and accuracy of messaging (regarding the need for ‘interpretive’ labelling), and understanding by consumers with limited literacy (again the need for ‘interpretive’ labelling). It will also be important to explicitly cite the precautionary principle in response to queries regarding ‘science’ and ‘scientific justification’ for these novel and innovative policy measures that have little ‘in situ’ evidence for their effect. It would also be ideal to include plans for evaluation to contribute to the state of knowledge regarding effectiveness of interpretive labelling.
In relation to this, it is also important that interpretive labelling measures be framed as part of a comprehensive policy response to nutrition-related chronic disease alongside components such as education programs, minimizing the opportunity to suggest these are available as ‘less trade restrictive alternatives.’ It is notable that in previous disputes, an alternative measure has not been considered ‘reasonably available’ where it is more properly considered part of a suite of complementary measures intended to act in concert with the mandatory interpretive nutrition labelling requirements at stake (WTO, 2007a).

Second, the findings suggested benefits of pro-active engagement with trade policy makers at early stages of policy design. In particular, this would help to identify appropriate points and avenues for notification and practical issues of WTO compliance, such as allowing sufficient time for notification and implementation. It may also help to identify any easily resolvable trade concerns before a draft is notified.

Third, the findings highlighted opportunities to reduce trade restrictiveness without compromising on core public health elements of label design. For example, it may be possible to make implementation less burdensome through the use of stickers and graduated implementation timeframes. Early consideration of the practicalities of implementation, such as the issue related to package size identified in the discussion, may also reduce trade-restrictiveness. Although the voluntary nature of the measures cited as alternatives from Australia, Switzerland and the EU means that they may not be directly comparable to these mandatory measures, there is potential to draw on other features of their design. For example, in Australia, the high level policy statement which guided development of a front-of-pack labelling system establish at the outset that such a system is not a stand-alone strategy, but fits within the context of broader health strategies, including explicit recognition of its role in supporting the Australian Dietary Guidelines and its consistency with existing Nutrient Reference Values. Eight aims of the scheme are outlined, drawing on evidence of its potential impact on both consumer understanding and improving the food environment through driving reformulation (Australia New Zealand Food Regulation Ministerial Council).

Fourth, one of the key issues raised by the discussions in the TBT Committee is whether ‘relevant’ international standards currently exist. As described, Codex Alimentarius leaves room for interpretive labelling but doesn’t provide guidance regarding details. Codex establishes ‘minimum standards’ for food safety–providing a ‘floor’ for governments to draw on in ensuring food safety, while allowing for differing levels of protection and innovation to meet emerging challenges (Cosbey, 2000). In contrast, the emphasis on harmonization and minimizing trade restrictiveness in the TBT Agreement suggests the need for specific guidance for measures. Previous disputes have arisen in situations such as this, where scientific evidence suggests that a measure stronger than existing international standards is advisable to protect human health based on the precautionary principle (Turvey and Mojduszka, 2005). This tension is reflected in the apparent confusion evident in the TBT discussions about whether a relevant standard exists. This suggests a need for development of international guidance regarding evidence and use of interpretive nutrition labelling. Ideally, this would be explicitly framed as a baseline (rather than a ceiling), which would enable it to serve as a reference point for national action, while enabling innovation.

The requests for justification regarding interpretive nutrition labelling measures in the TBT Committee raise the question of whether trade sector concerns might stifle innovation in nutrition labelling policy. Regulatory chill in public health stemming from trade concerns, a situation in which governments hesitate to implement new policies or legislation, has been well documented (Tienhaara, 2011). Voluntary approaches to labelling were repeatedly identified as an ‘alternative’ to these mandatory interpretive labelling measures discussed in the TBT Committee. This suggests that a specific area where regulatory chill may be likely to result is in the adoption of voluntary rather than mandatory approaches to interpretive nutrition labelling. This potential for regulatory chill would only be enhanced by the preference of the food industry for voluntary approaches (Mandle et al., 2015). However, strong rationales for mandatory approaches remain. For example, voluntary approaches may have limited long term effectiveness, due to disincentives to participate resulting from costs accruing to only compliant companies (in the form of implementation costs and perhaps market share) (Roe et al., 2014).

Overall, however, this analysis of discussions in the TBT Committee indicates that there is significant policy space at the international level for innovation in interpretive nutrition labelling policy, and has highlighted opportunities to strengthen nutrition labelling measures at both the international and national level. This policy space may not preclude a dispute or a ‘chill’, since the behaviours of corporations and governments are not fully predictable; but care in how interpretive nutrition labelling measures are crafted in light of trade concerns can minimize such a risk and help ensure that trade policy is coherent with nutrition action (Hawkes, 2015).

06 February 2017

The Australian National Audit Office report on the Commonwealth's $4bn Indigenous Advancement Strategy states that

The audit objective was to assess whether the Department of the Prime Minister and Cabinet has effectively established and implemented the Indigenous Advancement Strategy to achieve the outcomes desired by government.

The ANAO comments

Background

1. In September 2013, responsibility for the majority of Indigenous-specific policy and programs, as well as some mainstream programs that predominantly service Indigenous Australians, was transferred into the Department of the Prime Minister and Cabinet (the department). These substantial changes saw 27 programs consisting of 150 administered items, activities and sub-activities from eight separate entities moved to the department.

2. In May 2014, the Indigenous Advancement Strategy (the Strategy) was announced by the Australian Government as a significant reform in the administration and delivery of services and programs for Indigenous Australians. Under the Strategy, the items, activities and sub-activities inherited by the department were consolidated into five broad programs under a single outcome. The Australian Government initially committed $4.8 billion to the Strategy over four years from 2014–15. The 2014–15 Budget reported that the Australian Government would save $534.4 million over five years by rationalising Indigenous programs, grants and activities.

3. In the first year of the Strategy, from July 2014 to June 2015, the department focused on transitioning over 3000 funding agreements, consolidating legacy financial systems, administering a grant funding round and establishing a regional network.

Audit objective and criteria

4. The objective of the audit was to assess whether the department had effectively established and implemented the Indigenous Advancement Strategy to achieve the outcomes desired by Government.

5. To form a conclusion against the audit objective, the Australian National Audit Office (ANAO) adopted the following high-level audit criteria:

the department has designed the Strategy to improve results for Indigenous Australians in the Australian Government’s identified priority areas;

the department’s implementation of the Strategy supports a flexible program approach focused on prioritising the needs of Indigenous communities;

the department’s administration of grants supports the selection of the best projects to achieve the outcomes desired by the Australian Government, complies with the Commonwealth Grants Rules and Guidelines, and reduces red tape for providers;

the department has designed and applied the Strengthening Organisational Governance policy to ensure funded providers have high standards of corporate governance; and

the department has established a performance framework that supports ongoing assessment of program performance and progress towards outcomes.

6. The audit examined the department’s activities relating to the Strategy’s establishment, implementation, grants administration and performance measurement leading up to the Strategy’s announcement in 2014 and its initial implementation until the audit commenced in March 2016.

Conclusion

7. While the Department of the Prime Minister and Cabinet’s design work was focused on achieving the Indigenous Advancement Strategy’s policy objectives, the department did not effectively implement the Strategy.

8. The Australian Government’s identified priority areas are reflected in the Strategy’s program structure which is designed to be broad and flexible. The department considered the potential risks and benefits associated with the reforms. Planning and design for the Strategy was conducted in a seven week timeframe, which limited the department’s ability to fully implement key processes and frameworks, such as consultation, risk management and advice to Ministers, as intended.

9. The implementation of the Strategy occurred in a short timeframe and this affected the department’s ability to establish transitional arrangements and structures that focused on prioritising the needs of Indigenous communities.

10. The department’s grants administration processes fell short of the standard required to effectively manage a billion dollars of Commonwealth resources. The basis by which projects were recommended to the Minister was not clear and, as a result, limited assurance is available that the projects funded support the department’s desired outcomes. Further, the department did not:

assess applications in a manner that was consistent with the guidelines and the department’s public statements;

meet some of its obligations under the Commonwealth Grants Rules and Guidelines;

keep records of key decisions; or

establish performance targets for all funded projects.

11. The performance framework and measures established for the Strategy do not provide sufficient information to make assessments about program performance and progress towards achievement of the program outcomes. The monitoring systems inhibit the department’s ability to effectively verify, analyse or report on program performance. The department has commenced some evaluations of individual projects delivered under the Strategy but has not planned its evaluation approach after 2016–17

Traditional herbal products are widely used in Australia to treat a broad range of conditions and diseases. It is popularly believed that these products are safer than prescribed drugs. While many may be safe, it is worrying that the specific effects and harmful interactions of a number of their components with prescription medications is not well understood. Some traditional herbal preparations contain heavy metals and toxic chemicals, as well as naturally occurring organic toxins. The effects of these substances can be dire, including acute hepatic and renal failure, exacerbation of pre-existing conditions and diseases, and even death. The content and quality of herbal preparations are not tightly controlled, with some ingredients either not listed or their concentrations recorded inaccurately on websites or labels. Herbal products may also include illegal ingredients, such as ephedra, Asarum europaeum (European wild ginger) and endangered animal species (eg, snow leopard). An additional problem is augmentation with prescription medications to enhance the apparent effectiveness of a preparation. Toxic substances may also be deliberately or inadvertently added: less expensive, more harmful plants may be substituted for more expensive ingredients, and processing may not be adequate. The lack of regulation and monitoring of traditional herbal preparations in Australia and other Western countries means that their contribution to illness and death is unknown. We need to raise awareness of these problems with health care practitioners and with the general public.

Unfortunately, some herbal products are problematic in terms of their ingredients, effects and interactions with prescription medications. Complications associated with “non-medically qualified healers, lack of product standards, undeclared ingredients, non-disclosure of usage and long-term medication” have been identified. A survey of naturopaths and Western herbalists in Australia has, however, revealed support for formal registration and for evidence-based practice. A report published in 2016 detailed the potentially serious side effects of herbal dietary supplements, such as sub-massive hepatic necrosis necessitating organ transplantation caused by ingestion of a weight loss supplement containing garcinia cambogia (Garcinia gummi-gata).

We undertook a literature review after searching general internet and PubMed databases for selected terms and combinations of terms, including “adverse event” and “herbal”, “complementary and alternative medicine” (CAM) and “Australia”, “dietary supplement”, “traditional Chinese medicine” (TCM), and “ayurvedic”, as well as more specific clinical terms, such as “hepatotoxicity”. We examined the range of problems that may be encountered with preparations containing herbal materials, in order to determine the nature of the risks they pose to the Australian public and to make recommendations about their regulation.

The authors conclude

While there is no doubt that prescription medications are responsible for many serious side effects and deaths in Australia every year, this should not distract us from trying to determine the contribution of herbal preparations to morbidity and mortality. Although herbal products are claimed (especially on social media sites) to be completely safe, it is difficult to understand why it is widely believed that preparations with biological activity would not also have the potential to cause medicinal side effects. Light touch regulation of the industry means that dosages can be inconsistent, contents inaccurately listed, and toxic and pharmaceutical contaminants and adulterants may be present in herbal medicines.

Rather disturbingly, the answer to the question we asked at the beginning of this discussion — what are the risks to the Australian community from herbal products? — is that we simply do not know. This is a far from satisfactory situation, and perhaps one to which state and federal governments and regulatory bodies, including the TGA, should respond with greater urgency. We would certainly support more widespread testing of products and policing of label and website inaccuracies, although this will require financial support from an already stretched health budget. It may be appropriate for the TGA to require manufacturers to have samples independently tested before placing them on the market. Legal action should be considered in cases of non-compliance with applicable regulations, and preparations containing illegal substances should be banned. How many more adverse drug reactions involving herbal products are needed before more attention is given to this important public health problem?

The Professional Standards Board for Patent and Trade Marks Attorneys has stated that it

is aware of concerns that potential conflict of interest issues raised by recent consolidation within the profession are not adequately addressed under current arrangements. The Board takes these concerns seriously and wants to ensure that appropriate protections for both the profession and the public are in place.

Consequently an independent expert, Professor Andrew Christie, has been engaged to examine the issues, provide advice as to whether any changes to the regulation of the profession are required and recommend how those changes might be implemented.

The Board will consult broadly on any recommendations that arise out of Professor Christie’s review. The Board anticipates that this consultation will occur in April 2017.

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Statements in this blog are my own, rather than that of the University of Canberra.

The text and images are protected under Australian and international copyright and trade mark law. The blog does not represent legal advice. It is for informational purposes only; publication does not create an attorney-client relationship and nothing on this blog constitutes a solicitation for business.

The author pleads guilty to charges of irreverence, irony, indignation and honestly-held opinion.